2014-12 (July 15, 2014)
Disclosure/Disqualification; FamilyRules 1.2,
2.4, 2.7 & 2.11
Issue: An appellate level Judicial
Official’s relative within the first degree of
kinship is a first year associate in a large,
multi-office Connecticut law firm which regularly
appears before the Judicial Official. Should
the Judicial Official recuse himself or herself when
other members of the firm appear before the Judicial
Official?
Additional Facts: The Judicial Official had
the clerk’s office notify the parties in a
multi-party case that to the best of the Judicial
Official’s knowledge, the relative was not involved
in the case, had no interest that could be
substantially affected by the proceedings, did not
reside in the Judicial Official’s household, and had
no economic interest in the subject matter in
controversy or in a party to the proceeding and that
the Judicial Official believed that he or she could
decide the matter impartially. A party advised
the Clerk’s Office that it objected, citing Canon 2
and Rule 2.11(a)(2)(C) and the Comments to that
Rule, as well as noting that the relative’s law firm
had represented the party in the trial court and
that it was objectively reasonable to question
whether the Judicial Official might be influenced
by, or could appear to be influenced by, the
possibility that the relative’s interests could be
affected by the outcome of the proceedings. Response:
Rule 1.2 states that a judge “should act at
all times in a manner that promotes public
confidence in the … impartiality of the judiciary,
and shall avoid impropriety and the appearance of
impropriety. The test for appearance of
impropriety is whether the conduct would create in
reasonable minds a perception that the judge
violated this Code or engaged in other conduct that
reflects adversely on the judge’s honesty,
impartiality, temperament, or fitness to serve as a
judge.”
Rule 2.4 states, in relevant part, that “(b) A judge
shall not permit family, social, political,
financial, or other interests or relationships to
influence the judge’s judicial conduct or judgment.
(c) A judge shall not convey or permit others to
convey the impression that any person or
organization is in a position to influence the
judge’s judicial conduct or judgment.”
Rule 2.7 states that a judge “shall hear and decide
matters assigned to the judge except when
disqualified by Rule 2.11 or other law.”

Rule
2.11(a) states that a judge “shall disqualify
himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned
….” Two of the specifically identified
circumstances requiring disqualification are when
the judge knows that the judge’s “spouse or domestic
partner, or a person within the third degree of
relationship to either of them, or the spouse or
domestic partner of such a person is … acting as a
lawyer in the proceeding … [or] a person who has
more than a de minimis interest that could be
substantially affected by the proceeding”.
Rule 2.11 (a) (2) (B) and (C). An additional
circumstance requiring disqualification occurs when
the judge knows that the judge, “individually or as
a fiduciary, or the judge’s spouse, domestic
partner, parent, or child, or any other member of
the judge’s family residing in the judge’s
household, has an economic interest in the subject
matter in controversy or in a party to the
proceeding.” Rule 2.11 (a) (3). Comment
(4) to Rule 2.11 states as follows: “The fact that a
lawyer in a proceeding is affiliated with a law firm
with which a relative of the judge is affiliated
does not itself disqualify the judge. If,
however, the judge’s impartiality might reasonably
be questioned under subsection (a) or the relative
is known by the judge to have an interest in the law
firm that could be substantially affected by the
proceeding under subsection (a) (2) (C), the judge’s
disqualification is required.” Comment (7) to
Rule 2.11 states that an appellate level judge is
not disqualified from sitting on a proceeding merely
because, inter alia, the Judicial Official or the
Judicial Official’s spouse, domestic partner,
parent, child, or other member of the Judicial
Official’s family residing in the Judicial
Official’s household is practicing or has practiced
law with a firm or attorney who filed an amicus
brief in a matter before the Judicial Official.

Rule 2.11 (c) states that a judge subject to
disqualification under this Rule, except for bias or
prejudice under subsection (a)(1), “may ask the
parties and their lawyers to consider, outside the
presence of the judge and court personnel, whether
to waive the disqualification, provided that the
judge shall disclose on the record the basis of such
disqualification. If, following the
disclosure, the parties and lawyers agree, either in
writing or on the record before another judge, that
the judge should not be disqualified, the judge may
participate in the proceeding.”

The Connecticut Supreme Court has articulated the following standard
for recusal or disqualification of a judge:

The standard to be employed is
an objective one, not the judge’s subjective view as
to whether he or she can be fair and impartial in
hearing the case. … “Any conduct that would
lead a reasonable [person] knowing all the
circumstances to the conclusion that the judge’s
‘impartiality might reasonably be questioned’ is a
basis for the judge’s disqualification….”

Based upon the
information provided for the particular case pending
before the Court, the Committee unanimously
determined that the Judicial Official is not
disqualified subject to the following conditions:

1. The Judicial Official, through
the clerk’s office, inquires of the relative or the
relative’s firm whether the relative was involved in
any manner with the acquisition or representation of
the client; has more than a de minimis interest that
could be substantially affected by the proceeding;
or has an economic interest in the subject matter in
controversy or in a party to the proceeding.

2. If the relative was involved in the acquisition or
representation of the client, or has more than a de
minimis interest that could be substantially
affected by the proceeding, the Judicial Official
should recuse him or herself or follow the procedure
set forth in Rule 2.11(c) to request the parties to
consider whether to waive the Judicial Official’s
disqualification.

3. If the relative had no
involvement in the acquisition or representation of
the client, does not have more than a de minimis
interest that could be substantially affected by the
proceeding, and does not have an economic interest
in the subject matter in controversy or in a party
to the proceeding, the Judicial Official is not
disqualified.

In
reaching its opinion, the Committee considered its
opinion in
JE 2013-48 and the materials cited therein.